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Employment (Miscellaneous Provisions) Bill 2017: Second Stage (Resumed) (Continued)

Thursday, 15 February 2018

Dáil Éireann Debate
Vol. 965 No. 6

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(Speaker Continuing)

[Deputy Regina Doherty: Information on Regina Doherty Zoom on Regina Doherty] In some cases they do suit the employee, for example, students working during holiday periods, individuals who need to work around caring responsibilities for children or older people, or semi-retired persons who might only want to work hours that suit them on a flexible basis. We have to acknowledge that only a very small section of the community are engaged in casual work and that it works for them. While it has also been suggested employers will deliberately miscategorise employees as casual, it is important to remember that section 18 of the Organisation of Working Time Act 1997 refers to work of a casual nature but does not define it. In the 20 years since it was enacted, it has not led to a regulatory problem with employers incorrectly categorising employees as casual. The fears expressed about the Bill not specifically categorising or defining casual work are probably unfounded. Like all legislation, if, 12 months after it is introduced, it is not doing exactly what it says on the tin, we can reflect on it. It is not good practice to include definitions in legislation when the plain, ordinary meaning of a word is capable of being understood by all of the bodies responsible for adjudicating on it. The WRC and the Labour Court are capable of examining all of the circumstances of particular cases and making an appropriate judgment on whether a particular arrangement is genuinely casual, as they have been doing for the past 20 years.

Regarding the penalisation provisions, it is very important that all employees feel safe in order that they can exercise their employment rights without fear of being punished for doing so. It is worth bearing in mind that the penalisation provisions included in the Terms of Employment (Information) Act 1994 were broadly drafted to cover a wide range of scenarios in which an employee could be adversely treated. The relevant provisions mirror all of those in other employment legislation and are core to the Bill, the new banded hours provisions in particular. Under the banded hours provisions, if an employer reduces an employee's working hours or even threatens to do so because the employee sought to exercise his or her right, the employee can pursue a penalisation case to the WRC. He or she would be awarded anything up to two year's salary if the adjudication officer finds on the balance of probabilities that he or she was penalised for invoking his or her right under the Organisation of Working Time Act.

A number of Deputies have expressed concern that employees will have to wait 18 months post-enactment of the Bill to benefit from the banded hours provisions. I want to be forceful on this issue. They have potentially misunderstood the Bill. Perhaps they have read it, but their concerns are misplaced. I assure everybody that that is not what we intend. I draw attention to the proposed new section 18A(14) which specifically states a continuous period of employment before the commencement of the section will be reckonable as the reference period of the look-back period. In other words, if the section is commenced on 1 July 2018, an employee who commenced work on 1 January 2017 will be entitled from 1 July 2018 to seek to have a band of hours that reflects the 18 month period before the day it was enacted. Last night Deputies raised concerns that if we did not enact the Bill until the summer, people would have to wait for a further 18 months. That is not the case and it certainly is not our intention. Almost every Deputy who spoke last night and today said the 18-month reference period was too long for the banded hours provisions. It is fair to say we will be happy to look at the issues raised when we reach the Committee Stage amendments.

There are a number of points I would like to make. It is important that the look-back period and the length of time an employee is statutorily entitled to stay in a band of hours remain the same. If we are to look back 18 months, the time the employee needs to stay in the band of hours is the same. If people want to reduce it to six months, as was suggested last night, we would only be providing security for six months. We need to reflect very carefully and come up with something that is simple. It is also important that we use an easy divisor; therefore, 13 months as a reference period might not be desirable from that point of view. Nevertheless, we are genuinely willing and open to considering a reference period of 15 months. Deputy Róisín Shortall reminded us last night that the Joint Committee on Business, Enterprise and Innovation had recommended 12 months as the reference period, but it would not work because it would not reflect real seasonality.

Several speakers expressed concern about the widths of the bands. I understand their concerns and their points were well made. I reiterate that the bands should be sufficiently broad to allow a reasonable degree of flexibility in managing what will be the new banded hours arrangements. Wherever we finally pitch them, they will have to be beneficial to both employees and employers. Many of the Deputies who have spoken are left of centre, but we have to recognise that if we do not have employers, we will not have employees. The balance we need to strike in this legislation has to benefit both sides. A greater number of bands with a narrower range of hours would be more difficult to manage, but we will look at the issue on Committee Stage. We also recognise that some companies that have bargained collectively on banded hours arrangements may already have a higher number of bands with a narrower range of hours in each band, which works for particular sectors of employment. We certainly do not want to interfere with these arrangements because they work very well for those sectors, but we have to recognise that we are not passing legislation that is specific to a particular section of the retail market or the construction industry. We are passing legislation that will affect every employer and employee in the country. That is something of which we have to be very conscious and we will reflect on it on Committee Stage.

Some Deputies asked about the schedule for the five pieces of crucial information being supplied to employees by their employers and why it was not day one instead of day five. We need to reflect on the fact that today an employer has two months in which to provide that information. While the University of Limerick suggested one day, we want to be reasonable to employers. Day five is not unreasonable in the context of new employment. To those who do not accept that day five is sufficient, it is the first time ever we have introduced a criminal offence. We are very serious about making sure people will have their right to receive the most basic information on their employment terms of contract. Day five is reasonable, but for somebody who takes the Mick thereafter, there should be serious consequences. The introduction of a criminal offence sets the tone. What we are trying to do is make sure employers will give the information. It is the most basic information and the least we would expect to be given to employees before day five.

Different Deputies brought up the issue of compensation where workers showed up for work and none was available. I make no apology for targeting at the low-paid the minimum payment provision. If somebody is earning much more money, he or she will not be as adversely affected as somebody on a much lower wage who is called into work and then turned around and sent home. He or she will not be as affected as those in a situation, as suggested last night, where ten people are called into work when the employer knows full well that it only has work for five and will give it to the first five who show up and to heck with the rest of them. They are the ones who need to avail of the stronger provisions and that is what we will make sure we do. It is also important to remember that the Bill deals with all employers and employees engaged in contracts of service, whether they work in the gig economy or any other part of the economy. As is the case where an individual believes he or she is being deprived of employment rights applicable to being an employee, he or she may refer a complaint to the Workplace Relations Commission where it can be dealt with by way of mediation or adjudication, leading to a decision that will be enforceable through the District Court.

There is a section in my Department to which Deputy Richard Boyd Barrett referred. If there is anybody who has a difficulty in establishing his or her employment status, he or she can make a case independent of his or her employer to the scope division and it will be adjudicated on. If there are issues, they can be backdated. An established practice will be established in the context of what the person's social insurance contribution should be, including whether he or she is self-employed or employed.

Deputy Richard Boyd Barrett: Information on Richard Boyd Barrett Zoom on Richard Boyd Barrett What if they are vulnerable workers who are afraid?

Deputy Regina Doherty: Information on Regina Doherty Zoom on Regina Doherty We need to get past that issue. To that end, I will conduct a very large advertising campaign this year. People should not be afraid. I am not saying the scary examples the Deputy gave are not true, but in that case I need to do more to make sure people are not afraid. The penalisation measures included in the Bill, with what is in place in the scope division, will be complementary to make sure it is employers who should be afraid, not employees.


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